N5596

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 236 OF 2013

THE STATE

V

CONNEY FASEAN

Madang: Cannings J
2013: 22 October, 6, 20, 21 November;
2014: 13 March, 13 May

CRIMINAL LAW – grievous bodily harm, Criminal Code, Section 319 – trial – whether the accused did grievous bodily harm to the complainant – whether the defence of accident applied: Criminal Code, Section 24(1)(b); whether accused acted unlawfully: defence of provocation, Criminal Code, Section 267.

The accused was charged with unlawfully doing grievous bodily harm to the complainant contrary to Section 319 of the Criminal Code. He allegedly cut the complainant with a bushknife when the complainant tried to pull a baby child from him. The accused was the grandfather of the baby; the complainant was the baby's father. The complainant was directly related to the accused and the accused did not agree with the relationship between the complainant and the accused's daughter as they were close relatives. The State's case was that the accused deliberately cut the complainant with the bushknife. The accused raised three separate defences: accident, provocation and self-defence.

Held:

(1)	There are two elements of the offence under Section 319: doing grievous bodily harm to another person and doing it unlawfully.

(2)	The first element actually entails two issues: (a) whether grievous bodily harm was done to the complainant; and (b) if yes, whether the accused did that harm to the complainant.

(3)	The second element requires proof that the accused acted unlawfully. This means that the State must disprove any excusatory defences raised by the accused. If no such defences are raised or if the State is able to disprove all such defences raised, it will prove the second element as any assault (including doing grievous bodily harm) is, under Section 244(1) of the Criminal Code, unlawful unless it is authorised, justified or excused by law.

(4)	Here, the first element was proven as there was sufficient medical evidence to prove that the complainant's kneecap had been fractured in the incident. This was a severe injury, which fell within the definition of "grievous bodily harm", which was done to the complainant by the accused.

(5)	As to the second element, the State disproved the defence of accident under Section 24(1)(b) of the Criminal Code as the cutting of the deceased was a deliberate and intentional act.

(6)	However, the State failed to disprove the defence of provocation under Section 267(1) of the Criminal Code, which applied in this case and authorised the accused's doing grievous bodily harm to the complainant. This meant that the accused did not act unlawfully, that the State failed to prove the second element, that the accused had a complete defence, that the question of an alternative verdict did not arise and that it was unnecessary to consider the defence of self-defence.

(7)	The accused was accordingly found not guilty and discharged.

Cases cited

The following cases are cited in the judgment.

R v Meauri [1969-1970] PNGLR 259
R v Paul Maren (1971) N615
The State v Alphonse Dumui (2009) N3686
The State v Mark Mondo Bassop (2010) N3921
The State v Nick Pinga (2010) N3852
The State v Roland Rebon (2008) N3495

TRIAL

This was the trial of an accused charged with unlawfully doing grievous bodily harm to another person.

Counsel

J Morog, for the State
A Meten, for the accused

13th May, 2014 

1. CANNINGS J: The accused, Conney Fasean, is charged under Section 319 of the Criminal Code with unlawfully doing grievous bodily harm to the complainant, Jason Kafumbili, at Dogia settlement, Madang Province, on Saturday 22 September 2012.

2. The State's case is based on the oral testimony of the complainant who says that the accused reacted violently when he (the complainant) went to the accused's house to retrieve his 16-month-old baby daughter. The State also relies on a medical report showing that the complainant suffered a severe knee injury in the incident. The accused agrees that the complainant was injured during the incident but asserts that the injury was not as serious as the complainant makes it out to be. The accused also relies on three defences: accident, provocation and self-defence.

UNDISPUTED FACTS

3. A number of undisputed facts have emerged from the evidence:

•	The complainant, aged 31 at the time of the incident, is related to the accused, aged 60 at the date of the incident.

•	The complaint's father is a cousin of the accused. The accused is therefore an uncle of the complainant.

•	They are from the Maprik District, East Sepik Province, but have been living in Madang for a long time. The accused lived at Dogia. The complainant lived at Sisiak.

•	In 2009 the complainant entered a relationship with the accused's daughter Marish, aged in her 20s.

•	In 2010 the complainant and Marish moved to Mt Hagen. The complainant enrolled in a welding trade course at Hagen Vocational Centre. Marish studied at Holy Trinity Teachers College. She became pregnant during the second half of 2010.

•	In May 2011 Marish gave birth to a baby girl, Melija. The complainant is the biological father. The complainant and Marish were at that time living in Madang at the accused's house.

•	The accused strongly disapproved of the relationship between the complainant and Marish, regarding it as contrary to custom and incestuous.

•	For the rest of 2011 the complainant lived mostly in Kimbe or Lae, doing practical training in connection with his trade course.

•	In 2012 Marish went back to Mt Hagen to recommence her teaching course and the complainant returned to Madang and again moved in to the accused's house, to help care for the child.

•	At one stage the accused and his wife went to the Madang Welfare Office to discuss the issue of who should have custody of the child.

•	In the first half of September 2012 the complainant went to Mt Hagen as he heard that Marish – who he regarded as his wife – had entered a relationship with another man.

•	He confronted her, they argued, they had a physical confrontation, he lodged a complaint with the Police, Marish left for Madang and on 21 September 2012 he returned to Madang, intent on retrieving his child.

•	Early on the morning of Saturday 22 September 2012 the complainant went to the accused's house at Dogia. He had his cousin-brother with him.

•	The accused came out of the house and argued with the complainant. A physical struggle took place and the baby was in the middle of it.

•	The accused was armed with a bushknife. (The accused maintains that the complainant also had a bushknife, but that part of the evidence is contentious.)

•	During the course of the struggle, the complainant was cut on his right knee.

•	The complainant went to Modilon General Hospital for treatment for his injury. He was admitted to the surgery ward, two days after the incident, on 24 September 2012. But on 26 September 2012, on arrival at the operating theatre, he refused to have the planned operation.

ISSUES

4. Section 319 of the Criminal Code states:

A person who unlawfully does grievous bodily harm to another person is guilty of a crime.

Penalty: Imprisonment for a term not exceeding seven years.

5. This offence has, as explained in The State v Nick Pinga (2010) N3852, two elements:

1	doing grievous bodily harm to another person; and

2	doing it unlawfully.

6. If the State is unable to prove that the accused did grievous bodily harm to the complainant but can prove that he unlawfully assaulted him and caused bodily harm, an alternative conviction for the offence of unlawful assault occasioning bodily harm is, by virtue of Section 542(1) of the Criminal Code, available under Section 340(1) (R v Meauri [1969-1970] PNGLR 259, The State v Mark Mondo Bassop (2010) N3921).

7. The issues therefore are:

1	Did the accused do grievous bodily harm to the complainant? If no, did the accused assault and cause bodily harm to the complainant?

2	Did the accused act unlawfully?

8. Before these issues are addressed it is necessary to summarise the evidence, focussing on the contentious parts of it.

THE EVIDENCE

Evidence for the State

9. One witness gave evidence for the State, as summarised in the following table.

No	Witness	Description	
1	Jason Kafumbili	Age 33 at time of trial, unemployed, living at Sisiak	
Evidence	
The only reason he went to the accused's house on the morning of 22 September 2012 was to retrieve his daughter – he got the child from the accused's wife (his aunty) and gave the child to his cousin-brother, who had accompanied him, to hold – he asked his aunt to give him some clothes for the child – it was a simple request, he was not arguing with anyone, but he could see that it would not be met so he decided to leave and walked towards the road – suddenly the accused ran towards him brandishing a bushknife, threatening him – the accused was assisted by his wife and daughter – they removed the child from him – then the accused, who was standing on his right side, swung the bushknife at him, cutting his right knee through to the bone, causing him to fall – his cousin-brother tried to lift him up but his leg was locked and it was very painful. Lots of onlookers saw what happened.

In cross-examination the complainant denied having a bushknife – he denied that he injured himself when he and the others fell.	

10. Two exhibits were admitted into evidence by consent:

•	A medical report by Dr John Maihua of Madang Private Surgery (exhibit P1). Dr Maihua states that he examined the complainant on 10 November 2012 and observed that the complainant had a "very severe injury and he has 50% functional disability of his right leg" due to an open fracture of his right patella (knee), allegedly due to his being attacked with a knife. The wound on the complainant's right knee had healed but the knee and leg were unstable and he needed to use a crutch to support his right leg. Dr Maihua examined the clinical notes of Modilon General Hospital, which showed that the complainant was admitted on 24 September 2012 and was due to have an operation to wire the ends of the broken patella. However on his arrival at the operating theatre he refused the operation and on 26 September 2012 he was discharged.

•	The record of interview of the accused (exhibit P3): he stated that the complainant came to his house early on the morning of 22 September 2012 armed with a bushknife and pulled the baby away and then somehow cut himself.

Evidence for the defence

11. Two witnesses gave evidence for the defence, as summarised in the following table.

No	Witness	Description	
1	Conney Fasean	The accused, aged 61 at time of trial, unemployed, lives at Dogia 	
Evidence	
He was surprised to see the complainant at the house early in the morning of 22 September 2012 as he thought that he was in Mt Hagen – the complainant was angry and came straight in and pulled the baby from the arms of her grandmother – he (the accused) showed him a document that they had obtained from the Welfare Office, which was addressed to him and asked him to go in for counselling – the accused told him to make an appointment to go in to see the Welfare officials – the complainant replied "Fuck the paper! I want my child!" – the accused noticed the handle of a knife the complainant had tucked in his trousers and he saw the complainant move his arm as if he was going to take out the knife, he heard his friend call out "Cut him!", so he went to the fireplace and got his bushknife to defend himself – then his wife and daughter managed to get the baby back from his friend – his wife was holding the baby and the complainant tried to get it back from her, so he (the accused) ran towards him – he was still holding his bushknife as he knew that the complainant had one, he had no intention of cutting the complainant (as he is his brother's son) – he held the bushknife in his left hand while using his right hand to help his wife hold the baby – the complainant grabbed his hand and while they were struggling over the baby, they all fell on the grass: the accused, his wife, the complainant and the baby.

His daughter rushed in from the road, where she had been standing with the crowd, and grabbed the baby – his neighbour Arros came in and separated him and the complainant – he heard the crowd calling out about someone being cut – but he does not know exactly what happened as he was very short of breath.

In cross-examination the accused said that this was not the first time the complainant had done this sort of thing, he had on a previous occasion taken the child to Sisiak – he does not regard him highly: he is an "animal head, getting married to his own sister" – he denied swinging the bushknife or cutting the complainant.	
2	Arros Menkera 	Neighbour of accused, aged 35 at time of trial, unemployed	
Evidence	
He heard the accused and the complainant so he ran over to the accused's area to see what was happening – he saw the complainant pull the baby from the accused's wife – he heard Jason say "Fuck the paper!" when the accused started talking about the Welfare Office – he saw the accused and his wife and the complainant and the baby fall on the grass – he moved in to separate them – he pulled out the complainant first and heard him call out in pain that he had been cut on the leg – he saw that the complainant had indeed been cut and then he removed his knife from him – then lots of people came in and assisted the complainant to the road.

In cross-examination he denied making up his story to protect his neighbour – he was adamant he was present and witnessed the incident – he does not know how the complainant was cut: he could have been cut with his own knife or it might have been the accused's knife.	
 
12. I now consider the two elements of the offence.

1 	DID THE ACCUSED DO GRIEVOUS BODILY HARM TO THE COMPLAINANT?

13. This first element actually entails two issues:

•	Was grievous bodily harm done to the complainant?

•	If yes, was it the accused who did that harm to the complainant?

Was grievous bodily harm done to the complainant?

14. There is a definition of "grievous bodily harm" in Section 1 of the Criminal Code. It means:

any bodily injury of such a nature as to endanger or be likely to endanger life, or to cause or be likely to cause permanent injury to health.

15. It is not seriously disputed that the complainant suffered "bodily injury" in the incident, but was it of such a nature as to:

•	endanger life? or
•	be likely to endanger life? or
•	cause permanent injury to health? or
•	be likely to cause permanent injury to health?

16. Mrs Meten for the accused submitted that the injury incurred by the complainant did not fall into any of those categories. He sustained a cut on his knee, that is all. His life was never in danger. The medical report of Dr Maihua was of little probative value as it was based on an examination of the complainant that took place six weeks after the incident and on information given to the doctor from other sources including the complainant. What it did show was that the complainant was only in hospital for two days and that he declined to have an operation. Also the Doctor noted that his wound had healed well. All of this suggests that the injury was not serious and that it was the complainant who was trying to make it appear serious by declining to have the operation.

17. I agree with Mrs Meten that the medical evidence is not of the standard that would normally be expected in a GBH case. There should be in evidence the hospital's records showing when the complainant went to the emergency ward (if he went there at all), and what condition he was in and what treatment he received and what arrangements were made for surgery.

18. However I am ultimately persuaded by the report of Dr Maihua – who noted that the complainant had incurred a "very severe injury" – and the undisputed fact that the injury was incurred in the incident on 22 September 2012, that the complainant suffered bodily injury of such a nature as being "likely to cause permanent injury to health". The State has proven beyond reasonable doubt that grievous bodily harm was done to the complainant.

Did the accused do the harm?

19. The accused maintains that he did not swing his bushknife or cut the complainant. He must have fallen on his own knife. Mrs Meten has seized on this evidence to submit that the accused did not in fact do any harm to the complainant. It was the complainant who harmed himself.

20. I have difficulty with this argument and more particularly I have difficulty with the accused's evidence, at least on this point. It is very hard to believe that a person would sustain this sort of injury by just falling on a knife. I find it much easier to believe, given the evidence about the history of ill-will between the accused and the complainant and the dramatic early-morning incident and the physical struggle over the baby, that the accused was extremely angry with the complainant – who he regarded as an "animal head" – and lost his self-control and swung the bushknife at him and cut him on the knee.

21. I find that the State has proven that fact beyond reasonable doubt. It was the accused who did grievous bodily harm to the complainant. The first element of the offence has been proven.

2	DID THE ACCUSED ACT UNLAWFULLY?

22. This element requires the State to prove that the accused acted unlawfully. This means that the State must disprove any excusatory defences raised by the accused. If no such defences are raised or if the State is able to disprove all such defences raised, it will prove the second element. This is because any assault (including doing grievous bodily harm) is, under Section 244(1) of the Criminal Code, unlawful unless it is authorised, justified or excused by law.

23. The accused raises three defences: accident, provocation and self-defence.

Accident

24. This defence is provided by Section 24(1)(b) of the Criminal Code, which states:

Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for … an event that occurs by accident.

25. The defence operates in the same way as other excusatory defences such as provocation or self-defence. Once the accused puts evidence that the 'event' (in this case the doing of grievous bodily harm to the complainant) has 'occurred by accident', the onus rests on the State to disprove the defence.

26. The accused has given evidence that the complainant's injury was an accident: he fell on his own knife in the struggle and accidently cut himself. So the onus is on the State to prove that that was not the case. It has done that by proving, for the purposes of the first element, that the accused did grievous bodily harm to the complainant and that he did it deliberately by cutting him severely in the right knee. That event did not occur by accident. Therefore the defence of accident does not apply.

Provocation

27. The defence of provocation is provided by Section 267 of the Criminal Code, which states:

(1)	A person is not criminally responsible for an assault committed on a person who gives him provocation for the assault, if he—

(a)	is deprived by the provocation of the power of self-control; and
(b)	acts on it on the sudden and before there is time for his passion to cool,

if the force used is not disproportionate to the provocation, and is not intended to cause, and is not likely to cause, death or grievous bodily harm.

(2)	Any question, whether or not—

(a)	any particular act or insult is likely to deprive an ordinary person of the power of self-control and to induce him to assault the person by whom the act or insult is done or offered; or
(b)	in any particular case, the person provoked was actually deprived by the provocation of the power of self-control; or
(c)	any force used is disproportionate to the provocation,

is a question of fact.

28. As Mrs Meten pointed out, the accused has given evidence in support of the defence of provocation: the complainant turned up at his house without notice and in an angry state, behaving aggressively, armed with a knife and intent on physically removing the baby from the care and custody of its mother and grandparents.

29. The onus is on the State to disprove one or more elements of the defence beyond reasonable doubt, those elements being, as explained by Lay J in The State v Roland Rebon (2008) N3495, that:

1	the accused was deprived by the provocation of the power of self-control; and

2	the accused acted on the provocation on the sudden and before there was time for his passion to cool; and

3	the force used was:

(a)	not disproportionate to the provocation; and
(b)	not intended to cause death or grievous bodily harm; and
(c)	not likely to cause death or grievous bodily harm.

30. If the State cannot disprove at least one of those elements the defence of provocation will succeed. The grievous bodily harm done to the complainant by the accused will be regarded as lawful (R v Paul Maren (1971) N615, The State v Alphonse Dumui (2009) N3686).

31. I now restate the elements of the defence by posing these questions:

1	was the accused deprived by the provocation of the power of self-control?

2	did the accused act on the provocation on the sudden and before there was time for his passion to cool?

3	was the force used:

(a)	proportionate to the provocation?
(b)	not intended to cause death or grievous bodily harm?
(c)	not likely to cause, death or grievous bodily harm?

32. The State must prove that the answer to one or more of these questions is 'no'. If it cannot do this, all elements are presumed proven and the defence of provocation will operate. I will address each question in turn.

1	Yes, the accused was deprived by the provocation of the power of self-control. I accept the accused's evidence that he was very surprised to see the complainant at his house on the morning of the incident. The complainant turned up at his house without notice and in an angry state, behaving aggressively, armed with a knife and intent on physically removing the baby from the care and custody of its mother and grandparents. The complainant's actions were very provocative and would cause many reasonable people to lose self-control.

2	Yes, the accused acted on the provocation on the sudden and before there was time for his passion to cool. He reacted instantly. He tried, briefly, to reason with the complainant by advising him to go to the Welfare Office but got an irrational response – "Fuck the paper!" The accused had good reason to be angry and to be concerned about the welfare of the baby if the complainant managed to take the baby away.

3(a)	Yes, the force used was proportionate to the provocation. I reiterate that this was very substantial provocation, especially as the accused observed that the complainant had a knife with him and had the support of his cousin-brother and that there were reasonable grounds to believe that the welfare of the baby was at risk. The complainant was a much younger man than the accused, so the accused had to take quick and decisive action in response to the provocation.

3(b)	Yes, the force used was not intended to cause death or grievous bodily harm. I accept the accused's evidence that he did not intend any serious harm to the complainant. He had a very dim view of the complainant, regarding him as an "animal head", but he was his brother's son and he was not motivated by a desire to injure him badly and it was not in his interests to do that.

3(c)	Yes, the force used was not likely to cause death or grievous bodily harm. In reaching that conclusion I draw on the approach of Lay J in Rebon's case: the question must be asked from the point of a view of a person in the position of the accused with similar characteristics as the accused: an older-aged man, taking swift action against much a younger and physically stronger man. I consider that in the eyes of such a person there was not a substantial and real possibility that swinging the bushknife at the complainant's leg would cause death or grievous bodily harm.

The State has not proven that the answer to one or more of the questions is 'no'. The defence of provocation therefore applies.

Consequences

33. Acceptance of the defence of provocation means that:

•	the accused's doing grievous bodily harm to the complainant is authorised by law;
•	the accused did not act unlawfully;
•	the State has failed to prove the second element.

34. Provocation is a complete defence, so the question of an alternative verdict does not arise. It is unnecessary to consider the defence of self-defence. The accused is entitled to an acquittal and a discharge.

VERDICT

35. Conney Fasean, having been charged with one count of unlawfully doing grievous bodily harm contrary to Section 319 of the Criminal Code, is found not guilty of that offence and not guilty of any other offence and is discharged from the indictment.

Verdict accordingly.
_________________________________________________________

Public Prosecutor :  Lawyer for the State
Public Solicitor :  Lawyer for the accused